Sherwood v. Salmon , 2 Day 128 ( 1805 )

By Tire Court

unanimously, the judgment was reversed.

The questions are, was the declaration sufficient, and the issue material ?

- With respect to the first.—The maxim caveat emfitor applies forcibly in this case. The law redresses those only who use due diligence to protect themselves :—Such diligence as prudent men ordinarily use—The quality of land, on which its value depends, and which is too various for-a market standard, the purchaser can see, if he will but look. And the course that prudence has established, requires that he should look ; if not with his own eyes, by those of an agent, or some one in whom he can reasonably place a confidence. Whatever morality may require, it is too much for commerce to require, that the vendor should see for the purchaser. It is enough for him, in point of law, that he does not conceal the knowledge of secret defects, nor give a warranty, express or implied. Here he has done neither.

Whether lands be five, or five hundred miles from the purchaser’s residence, does not vary the requisition of clue diligence, though it may the expense of complying with it. Land is not like a ship at sea ; it has a known location, and can be approached. And even should it be necessary to purchase land unseen, which can scarcely happen in a provident course of business, covenants may be inserted respecting quality, as well as seisin, or title.

As there must be a reversal upon this point, which makes an end of the case, it is not necessary to unravel lengthy and intricate pleadings to get at the other.